January 21, 2006

Playing on the stereo, "Triad" (sung by David Crosby, not Grace Slick):

I want to know how it will beMe and her or you and meYou both stand there with your long hair flowingYour eyes alive, your minds are still growingSaying to me what can we do now that weBoth love you -- I love you tooI don't really see, why can't we go on as threeYou are afraid, embarrased too, no one has everSaid such a thing to youYour mother's ghost stands at you shoulderA face like ice a little bit colderSaying to youYou can not do that it breaks all the rulesYou learned in schoolI don't really see, why can't we go on as threeWe love each other it's plain to seeThere's just one answer comes to meSister lovers -- water brothersAnd in time maybe othersSo you see what we can doIf we try something new - if you're crazy tooI don't really see, why can't we go on as three

Remember that? I love the way he's overflowing with love yet still manages to say "face like ice a little bit colder." The whole world is transforming, except the part where men hate their mother-in-law. Anyway, great classic song expressing the deluded idea, which seemed true at the time, that if we just stopped listening to the uptight squares -- with their rules, man -- we could find infinite pleasure.

Lots of major media went for it too. Today, the NYT regrets falling for the cute, adding this correction:

Although the article reported that the information had been obtained from reports in The Daily Telegraph and other British newspapers, The Times could not verify the former couple's accounts because the information was given to the British press by a freelance journalist who charged for the account. The Times does not pay for information. The Times should have disclosed fully to readers why we relied on other news reports. Or, perhaps it would have been prudent, given that condition, for The Times to have resisted parroting the episode at all.

Hmmm... so people are selling the cute animal stories the web is so hungry for? I'm going to hold cute animal stories up to fiction standards from now on -- not because I think they are all made up, but because there are too many of them, we're too into them, they are the junk food of the web, and they aren't really that good. If some short story writer had come up with the Ziggy the Parrot story, you'd immediately see it for the dreck it is.

And let me take some credit: I did refuse to blog the whale story yesterday. It was like pushing away a piece of cake to start a diet.

After a two-week felony trial culminating with notes from a conflicted jury, four Kerry-Edwards campaign workers - including the sons of U.S. Rep. Gwen Moore (D-Wis.) and former Acting Mayor Marvin Pratt - had their charges in the Election Day 2004 tire-slashing reduced to misdemeanors and accepted the deal....

If they pay a collective $5,317.45 restitution by their April 26 sentencing, Assistant District Attorney David Feiss will recommend all four get probation. Misdemeanor property damage carries a possible maximum penalty of nine months in jail and a $10,000 fine.

The sudden plea offer came at 2 p.m., after the jury - which had been deliberating since Thursday afternoon - sent a note that "people that are adamant about their decision and are not budging."

Election fraud cases can be extremely difficult to prove. In the case of the tire slashings, the state by necessity had to rely on the testimony of out-of-state operatives who allegedly hadn't all been entirely cooperative on the front end. The prosecution was probably justifiably worried about potential outright acquittals of all, and decided it was better to convict the defendants of something, than nothing. It's hard to argue with that.

But the frustrating thing is that McCann's office has been notoriously ineffective in prosecuting election violations overall, and the vast majority of the allegations in Wisconsin have been lodged in his jurisdiction and ended up not prosecuted or under-played....

In an extremely open election system like ours (same-day registration and no photo ID requirement), it's important to have aggressive, tough prosecution of election-law violations so that there's SOME deterrent against people doing it.

Judge Brennan was absolutely correct in observing that six hours is not a long time to deliberate after a seven day trial and undeniably right in telling them to continue. It really is hard to avoid at least the suspicion that the DA's office saw this as an opportunity to bail on what it saw as a no-win situation. I don't see how it is a reasonable compromise by a prosecutor who wants a conviction. Why, after devoting just about all the resources that you are going to have to devote, would you, essentially, let the defendants go at the first small sign that you might not win?

I don't teach classes on gay rights any more. I suspect many of my students now experience me as a homosexual professional rather than as a professional homosexual, if they think of me in such terms at all. But I don't experience myself as covering. I've just moved on to other interests, in the way scholars do. So the same behavior - not teaching gay rights - has changed in meaning over time.

This just brings home to me that the only right I have wanted with any consistency is the freedom to be who I am. I'll be the first to admit that I owe much of that freedom to group-based equality movements, like the gay rights movement. But it is now time for us as a nation to shift the emphasis away from equality and toward liberty in our debates about identity politics. Only through such freedom can we live our lives as works in progress, which is to say, as the complex, changeful and contradictory creatures that we are.

What inferences can you make from blogging patterns? For example, look at this chart for blogging about Samuel Alito:

I see confirmation. If the nomination were running into trouble, the discussions would have kept up. Right?

Okay, that was an easy one. Let's look at films. Here's "Brokeback Mountain":

The recent spike is the Golden Globes. But I'm impressed by the overall building of the discussion.

Compare "Capote":

Again, there's that Golden Globes spike, but maybe there's a slight increase in the level over time.

Let's try to read how the domestic surveillance issue is affecting politics. It's harder to think of what search term to use, but I'm going with "NSA":

Well? What can you say? Bloggers react to news, but bloggers react to a certain type of news story. You know what the biggest story yesterday was, don't you? This. The 42-page Department of Justice legal analysis of the NSA program can't compare to a whale swimming in the Thames.

January 20, 2006

Says David Foster Wallace at the beginning of his reading of "Consider the Lobster" (which I've been listening to). The NYT has an article today about the footnotes-and-audiobooks problem. In "Lobster," the problem is solved by putting a filter on Wallace's voice when he's reading the footnote. I think it would be saner to just have him say "footnote" and then "back to the text." Or better yet, skip the footnotes if you're writing the sort of thing they make audiobooks out of.

At his public readings, Mr. Wallace either skips footnotes, reads them as if they were in the main text or - the "worst option," he said in a telephone interview- brackets them by saying "begin footnote" and "end footnote."

"I spend a very long time trying to get the writing to hang together grammatically on the page more than for a sweating, breathing person to read to an audience," Mr. Wallace said from his home in Claremont, Calif., his voice sounding oddly footnote-ish. "Most poetry is written to ride on the breath, and getting to hear the poet read it is kind of a revelation and makes the poetry more alive. But with certain literary narrative writers like me, we want the writing to sound like a brain voice, like the sound of the voice inside of the head, and the brain voice is faster, is absent any breath, and it holds together grammatically rather than sonically."

So single-minded is Mr. Wallace, who is 43, about how his work looks over how it sounds that at his first public reading in the late 1980's, "I inserted the punctuation," he recalled, adding: "I would read a clause and say 'comma' or 'semicolon.' Or I'd say, 'new paragraph' and 'indent.' Now looking back at it I can see what a silent deal this is for me." At one point in "Consider the Lobster," Mr. Wallace encounters an ellipsis and reads "dot, dot, dot," which producers say is verboten. "Part of it is I'm not an actor and I don't know how to trail off, and I become somewhat autistic about it," he said.

A brain voice? Do you have a brain voice? That should be an easy question to answer, but I can't answer it. I think I only have a sense of a "brain voice" when I'm thinking about speaking, which is the opposite of what Wallace is talking about.

"I become somewhat autistic about it" -- I'm not too sure what that means either! You mean he's not consciously being sort of funny when he says "dot, dot, dot"? He's just bizarrely overfocused on his own text?

Anyway, despite the seeming lack of similarity by between my mind and Wallace's, I'm greatly enjoying "Lobster," which I've got in my iPod.

Speaking of autism, the article also discusses the audio book of "The Curious Incident of the Dog in the Night-Time," a novel with an autistic boy as the first-person narrator. I've listened to this one too. This one isn't read by the author -- Mark Haddon -- but by an excellent reader named Jeff Woodman. Here, the book has all sorts of drawings and diagrams, and the text has had to be reconfigured a bit so you can understand it without the graphics. This makes me likely to buy the book too.

I must add that even when the book lacks any distinctive visual elements, the experience of seeing the text is different enough that I find that when I like an audio book, I want to see the text too.

I enjoyed this NPR interview with Albert Brooks about his new movie, in which a character, played by him and named Albert Brooks, is sent to India and Pakistan to try to learn what makes Muslims laugh and write a 500 page report about it, which, Fred Thompson tells him, would be doing his country a great service. Well, that's the concept. Yes, of course, it doesn't make any sense. He's just one comedian, and the Muslims in question are millions of people, many of whom don't speak English. I wouldn't even expect Albert Brooks to be able to figure out what Americans find funny. But none of that matters much, I assume. The question isn't what makes Muslims laugh, but whether Brooks can make us laugh with this material. That sounds like a rather difficult task.

[T]he movie is complicated by two paradoxes—one annoyingly obvious, the other fascinatingly implicit. The first is the use of India, which, although home to 150 million Muslims, has six times as many Hindus; the second is that Brooks's comic sensibility travels so badly. Woody Allen may bestride the world like a colossus, but—the brilliance of Real Life, Modern Romance, and Lost in America notwithstanding—not even the French have shown any interest in Albert Brooks. I'd hazard that this has something to do with the untranslatable subtlety of his one-liners (dependent as they are on situation and delivery) and the uningratiating nature of his persona (complete with refusal to acknowledge blatant neuroses).

"Not even the French have shown any interest in Albert Brooks" -- I love that.

Sixteen years ago he won an influential case against Frito-Lay over a vocal sound-alike in a Doritos commercial, and he has pursued imitators ever since. Last Friday Mr. Waits was awarded damages in a case against the Audi division of Volkswagen for a commercial in Spain using music that was similar to his song "Innocent When You Dream," sung in a voice like his. Another lawsuit is pending in Germany against the Opel division of General Motors, this one for a version of the Brahms "Lullaby" performed in what he calls a suspiciously Waitsian voice.

"It does take a tremendous amount of time, energy and money" to pursue these cases, Mr. Waits said from his home in Northern California. "But in a way," he added, "you're building a road that other people will drive on. I have a moral right to my voice. It's like property - there's a fence around it, in a way."

At a time when musicians are increasingly open to licensing their music for advertising, television and other commercial uses, Mr. Waits has steadily built a reputation not only for refusing to license his music, but also for aggressively defending his style as a unique legal property.

"It's part of an artist's odyssey," he said, "discovering your own voice and struggling to find the combination of qualities that makes you unique. It's kind of like your face, your identity. Now I've got these unscrupulous doppelgängers out there - my evil twin who is undermining every move I make."...

In both cases, Mr. Waits said, the agencies had first approached him to perform and then, when he turned them down, hired imitators.

You'd think the companies have at least learned not to ask him first. Without that juicy nugget of evidence, I wonder if he can keep winning these things. I'm not an expert in this area of law. I just find it interesting. I'm trying to picture the trial. Are there experts who can testify about the elements of a gravelly voice and a doomed attitude?

Orin Kerr makes a point in this post that I've found myself saying a few times lately, that blogging can be good for legal scholarship. He's responding to Daniel Solove, who's complaining about how badly written law review articles are. They're too long and complicated, especially in proportion to the ideas they express.

I wrote a little article on this subject back in 1994 called "Who's to Blame for Law Reviews?" 70 Chi.-Kent. L. Rev. 81. I was disagreeing with people who blame the student editors, who, I said were mainly following the lead of lawprofs:

[L]aw review editors have a sense of what a Law Review Article is supposed to look like: a proper ratio of text to footnotes, a reassuring stolidity to the prose, a predictable structure studded with signposts that advertise the existence of that predictable structure, transition paragraphs before every paragraph that contains the approximation of a new idea, transition sentences before every sentence that ventures into the semblance of new territory, transition phrases parasiting on every sentence that might otherwise contain no reminder of what we have been discussing all along, confidence-inspiring, tiny elevated numbers appearing with the frequency of punctuation marks.

If you give these students your attempt at imitating the law review articles that have gone before, they will quite naturally undertake to help you succeed at what it appears you are trying to do - to produce a textual object that really looks like that article stereotype they have in their minds. Chances are they do not have a terrible lot of respect for the form either and they, too, ridicule its pomposity, its leaden seriousness, its circumspect proposals, and its compulsive footnoting. Yet, just as the author sought a job, tenure, a raise, or (for the more lofty-minded) reputation, the students have extrinsic goals in mind. It is their own future, and not the general advancement of legal literature, that tends to motivate law students to add the work of editing a law journal to their already heavy workload. If the law professor has not challenged the limitations of the genre, why would they?

When you see your article after their editing, you are going to be appalled at what they've done. It's going to come back insipidly neutral in tone, deadened into law reviewese. You hate it. Why did they do this to my prose?

Perhaps they have done it because your work seemed to be moving in that direction in the first place. You were writing what was in essence a parody, and they reacted by shifting into an even higher gear parody. It is a joint venture: what we do suggests to them that they ought to do what they do - even though when we see it we find it appalling. We are like the parents who are aghast when their children lash out at them with anger, sarcasm, or words meant to humiliate. Those parents resist perceiving that it is their own manner of speaking that the children have adopted. The children return their interpretation of the language and intonation they have heard. The parents are aghast because they are now on the receiving end. The children are showing them how it looks from the other side. The parent is not the victim but the teacher. Likewise, we, the law review writers, can fancy ourselves the victims of the students, but we are, most assuredly, the teachers.

Our displeasure with student editing should translate into critique of our own writing. The solution is not to complain about students, but to stop writing these parodies.

I really believed, back then, that the short essay form could take over. But in fact, law reviews got longer and longer and more and more unreadable. I'd have been sad if I had known that then, but I'd have been elated if I'd known that blogging would come into being.

Orin Kerr responds to Solove with:

Maybe the answer is more lawprof bloggers. Blogging pushes you to write clearly and simply; the format rewards clarity of expression more than traditional law review articles do.

That is so right. Blogging sharpens our taste in writing. It makes us impatient with circumlocution and pretentiousness. It makes us expect to see pithy ideas in every sentence.

And let's not resort to blaming law students. I don't think you need to escape into blogging because law reviews hold you back. As I said in 1994, the students learn from us. As we blog and demonstrate the value of concision and clearly expressed ideas, they are learning that it is legitimate to demand these writing values from the lawprofs whose work they publish. They are tipped off that it's okay to be fed up with windy professorial meanderings. Students can revise and restore their journals -- as I've got to think they want to do -- by infusing them with the good writing values blogging demonstrates.

The Department of Justice has a 42-page legal analysis of the much-criticized NSA surveillance program (PDF):

The [Authorization for Use of Military Force] places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635.

The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized 1 Chapter 119 of title 18, which was enacted by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2521 (2000 & West Supp. 2005), is often referred to as “Title III.” by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.

We've already heard this argument, but the new document makes the structure of the argument very clear: the activities should be seen as not violating FISA (because of the AUMF), but if a conflict with FISA is seen, the President still has the power (because FISA would be unconstitutional as an infringement of his Article II powers). The latter argument is also held up as a reason to interpret FISA not to see a conflict (because statutes should be interpreted to avoid difficult questions of constitutional law). That is, any ambiguities in coordinating FISA and AUMF should be resolved in favor of presidential power.

The document also deals with the question whether the Fourth Amendment is violated.

UCLAProfs.com is not conducting a witch-hunt, engaging in police-state surveillance, or targeting privately-held political beliefs. We are concerned solely with indoctrination, one-sided presentation of ideological controversies, and unprofessional classroom behavior, no matter where it falls on the ideological spectrum. As an illustrative example of egregious behavior with which UCLAProfs is concerned, please review the article BAA President Andrew Jones wrote about his experience in a 2002 political science class. Occasional political remarks, jokes, or the like are generally harmless behavior. We are concerned with a class which in full any reasonable observer would agree was taught in an unacceptable or unprofessional manner...

Accusing a professor of unprofessional behavior is in essence an accusation of professional malfeasance. UCLAProfs.com will air such charges only after extended reviews of a professor’s record. The taping of lectures leaves no room for a vengeful student to take questionable statements out of context, to (deliberately or inadvertently) misquote a professor, or to otherwise give a false portrait of the class. As such, we find the current hysteria, and the many intemperate accusations that the UCLAProfs.com program is a “blacklist,” “ratting out” professors, or other contemptible phenomenon, to be a severe distortion.

I ... think the offering of money to students is a bit unsavory, though I'm not positive how bad it is; much information-gathering, after all, is done by people who get paid, and sometimes get paid in rough correlation to the stuff they unearth...

Nonetheless, I do think we need to put all this in perspective. My colleagues and I are public servants. We have a certain degree of influence over public affairs, both through our public commentary and through our teaching. Others disagree with us, and think we're doing a public disservice rather than a public service. They're entitled to criticize us, and to monitor our public performance of our duties to see whether that performance is, in their view, lacking. I try to imagine what I would think if someone from the Left set up a site to criticize Prof. Bainbridge, me, and my (rather few) conservative colleagues, and to solicit concrete evidence of our supposed misdeeds; I would like to think that I would recognize that this was their right, both legally and ethically.

Putting their right to do it to the side, there is something awfully disturbing about displaying a list of names like this. It just looks ugly and intended to intimidate. I don't see why an organization that purports to be concerned about fairness would want to operate in this fashion. It's self-defeating. And their current complaint that people are reacting to them in an "intemperate" way is rather amusing. What did they expect?

So says Christopher Lee, in the midst of criticizing the film industry today for casting based on looks and not talent.

"The problem today, and I think it's a very dangerous one for the people concerned, is that there are quite large numbers of very young men and women - boys and girls to me - from 18 to 30, and they are playing very large parts in huge films and they simply, through no fault of their own, don't have the background and the experience and the knowledge to pull if off.

"And it's dangerous for them because if they are in one failure after another, sooner or later people are going to say, 'well, he may have a pretty face but he's not bringing the public in'.

"So many of these good-looking - sometimes even pretty - boys and girls are getting these good roles and it's not fair on them. At some point it's going to catch up."

Richard Whitmire, in The New Republic, considers the new gender gap in education and the lack of attention to it. Boys, not girls, are falling behind. The studies and statistics are very hard to face up to. After so much attention to helping girls overcome their educational problems, it's difficult to believe we need to change things to cater to boys, especially when the primary complaint about the boys seems to be that they aren't motivated to work as hard as the girls. And then there is the notion that there's a profound difference at the neurological level:

The brains of men and women are very different. Last spring, Scientific American summed up the best gender and brain research, including a study demonstrating that women have greater neuron density in the temporal lobe cortex, the region of the brain associated with verbal skills. Now we've reached the heart of the mystery. Girls have genetic advantages that make them better readers, especially early in life. And, now, society is favoring verbal skills. Even in math, the emphasis has shifted away from guy-friendly problems involving quick calculations to word and logic problems.

Increasingly, teachers ask students to keep written journals, even as early as kindergarten. What gets written isn't polished prose, but it is important training, say teachers, some of whom rely on the book Kid Writing, which advocates the use of writing to teach children basic skills in a host of subjects. The teachers are only doing their jobs, preparing their students for a work world that has moved rapidly away from manufacturing and agriculture and into information-based work. It's not that schools have changed their ways to favor girls; it's that they haven't changed their ways to help boys adjust to this new world.

Suddenly, the anecdotal evidence becomes obvious. Open the door of any ninth-grade "academy" that some school districts run--the clump of students predicted to sink in high school--and you'll see a potential football team. Nearly all guys. Ninth grade is where boys' verbal deficit becomes an albatross that stymies further male academic achievement. That's the year guys run into the fruits of the school-reform movement that date back to the 1989 governors' summit in Charlottesville, Virginia, where Democrats and Republicans vowed to shake up schools. One outcome of the summit is that, starting in ninth grade, every student now gets a verbally drenched curriculum that is supposed to better prepare them for college. Good goal, but it's leaving boys in the dust.

What's the solution? The article offers little other than the importance of acknowledging that there is a problem. Well, there's a suggestion high school textbooks be made into comic books to help boys. If the problem really is as bad as this article makes it sound, shouldn't we consider separating the boys from the girls?

UPDATE: I wanted to add that I would strongly object to public schools offering only all-boys and all-girls schools. I think instead there could be two schools, one adapted to the set of skills and behaviors that these scientific studies are associating with with boys and the others doing the same with girls, but then each child could choose which one to attend. For example, one school could have frequent sports breaks and the other could have longer classes. One could have high pressure exams and the other a steady flow of homework assignments.

Says Simon Cowell, criticizing Kelly Clarkson, who won't agree to let them sing her songs on "American Idol." He's a jerk for criticizing her openly like that. He should just accept that she needs to develop away from the show. That's part of what being a star is. He shouldn't want it to be that the stardom you get out of the show requires you to remain anchored to it.

Clarkson has become a major star in the past year, with her hit "Since U Been Gone" earning both massive sales and critical respect, particularly from a rock community that has looked upon "American Idol" contestants warily. Her album "Breakaway" earned a Grammy nomination for best pop vocal album.

He should appreciate that the show was able to put someone on a path to real credibility, but I suppose he doesn't like to think that the show's aura becomes a bad thing.

"If the model proposed by Darwin is not considered sufficient, one should search for another," Fiorenzo Facchini, a professor of evolutionary biology at the University of Bologna, wrote in the Jan. 16-17 edition of the paper, L'Osservatore Romano.

"But it is not correct from a methodological point of view to stray from the field of science while pretending to do science," he wrote, calling intelligent design unscientific. "It only creates confusion between the scientific plane and those that are philosophical or religious."

Says Andrae to Santino on last night's "Project Runway." Santino's rude arrogance and dedication to a somewhat flaky personal vision amuse me no end. People keep telling him his designs have "too much going on," but he won't stop. He thinks he can go wildly astray and then talk a good game:

Speaking of Andrae, he's been so hysterical in the past that it was nice to see him focus when the overlock machines failed. Who gives up his own time to fix the machines everyone needs to use? I liked that.

The task is to make a skating costume for Sasha Cohen, and that's a weird task, not just because it involves stretch fabric and therefore the dreaded overlock machine, but because skating costumes are in such perverse anti-fashion taste. What does it mean to be good in this category? Pleasing the client? And there's the whole aspect of needing to be able to skate in it. But they're worrying that the models will "pop seams" just walking down the runway. And how can a model look right in a skater's costume? Aren't the skaters tiny little women? We see Sasha Cohen sitting there as one of the judges. She really is tiny. Really pretty too.

Spoilers follow.

"It's not easy to be vulgar and dowdy, but he managed to do it." That was said of Emmett's "Starry Night" creation, and so it's Emmett who must leave, not Santino with his crazily befeathered phoenix-rising-from-the-flames monstrosity:

Santino, saved, turned as he walked off to whisper "Emmett, I'm sorry." Can it be that he's humbled now? It's hard to picture him changing, listening to advice, toning it down. But maybe he wants to win badly enough that he will. I think we saw Andrae evolve this week. Maybe next week there will be a new Santino.

Oh, and poor, poor Emmett, forced to wear that skater shirt, deprived of any way to hide his gut.

UPDATE: Here's the Television Without Pity recap: "Emmett is sent home for showing too much 'tootie.' Three cheers for the use of the word 'tootie.'" (Unusual slang, no? It refers to the lower front of the costume.) TWOP also reminds me of the part where Robert Plotkin from Season 1 of the show makes an appearance as the delivery guy. Kind of like when Bill Rancic appears in post-Season 1 episodes of "The Apprentice." Except -- in so many ways -- not. Well, I couldn't understand why they brought Robert back in Season 1 after he'd been eliminated. All I can think is that someone behind the show thinks the guy has major appeal. I tend to think it's a judgment on the other guys: Robert's the genuinely masculine contestant, so they send him out when they want some masculinity. There's something allusively pornographic about the role of delivery guy.

January 18, 2006

That's a beautiful, classic "American Idol" quote. If you think the show is just a lot of deluded, narcissistic Americans, you need to see Garet Johnson, a cowboy, who's never sung in public, who sings Elton John's "Can You Feel the Love Tonight," and who has no money for lessons and doesn't even have a place in a church choir to learn something. It's heartbreaking.

He's from "a town of 4 people," "just a cowboy that loves to sing" -- only ever sung in front of a turkey, and says "I need to sing for people." Maybe the show is just manipulating me at this point, but -- damn! -- it works. I break down in tears.

The abortion case fizzles as the Court avoids the "undue burden" question and reverses because the lower court "chose the most blunt remedy." The unanimous decision was written by Justice O'Connor, in perhaps her last opinion.

Justices said a lower court went too far by permanently blocking the law that requires a parent to be told before a daughter ends her pregnancy.

An appeals court must now reconsider the law, which requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth's health.

ADDED: From the opinion:

When a statute restricting access to abortion may be applied in a manner that harms women's health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact….

In this case, the courts below chose the most blunt remedy -- permanently enjoining the enforcement of New Hampshire's parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called "partial birth abortion" unless the procedure was necessary to save the pregnant woman's life. We held Nebraska's law unconstitutional because it lacked a health exception. But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.

In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief "just and proper," and conceded at oral argument that carefully crafted injunctive relief may resolve this case.

Dahlia Lithwick comments on the Oregon assisted suicide case and the role of Anthony Kennedy on the newly reconfigured Court:

[A] key to understanding Kennedy's role as a swing voter is simpler: He just really, really likes the power. In his book Closed Chambers, Edward Lazarus, a former clerk for Justice Harry Blackmun, writes that Kennedy bragged about his ability to occupy one of the pivotal positions on the court, deliberately and craftily espousing views at conference that would make him a "necessary but distinctive fifth vote for a majority." Like O'Connor, Kennedy may be a legal politician before he is an ideological purist. And with O'Connor soon to be out of the picture, Kennedy may now get the chance to really make some constitutional hay.

All of which raises another question now bandied about by hard-core court-watchers: What will happen when the good-natured and temperate Chief Justice Roberts begins to work his twinkly charm on Kennedy? Is it possible that while Scalia's insults helped push the conservative Kennedy toward the left, the tractor beam of Roberts' niceness may pull him back into the fold? That's certainly the hope of the political right. But if today's opinion in Gonzales is a harbinger of things to come, Roberts has some fairly heavy-duty twinkling ahead of him.

How much will Kennedy be affected by knowing that we think Roberts will influence him? On New Year's Eve, responding to a commenter who opined that Kennedy will control the Court, I wrote:

Even though I've said things like this myself, I think it underestimates the intellectual and charismatic powers of the new Chief Justice. So I want to make a different prediction for what 2006 will be like for the Supreme Court: Kennedy will work with John Roberts to forge a newly coherent moderate-conservative position. The project of creating an articulate moderate position will be so compelling and promise such benefits that Stephen Breyer will contribute his formidable skills, and we will see the era of fragmented, ad hoc decisionmaking come to an end.

Of course, that's prediction melded with hope. I hate to think the justices craft idiosyncratic positions to gain attention and power. Majority opinions that clearly articulate legal doctrine are too important. If Lazarus's characterization of Kennedy were true -- and I can't say that it is -- we should be bitterly critical of him.

But we should see that there are legitimate ways judges analyze legal issues that will situate them in the middle. You can be a faithful judge without being what Litwick calls an "ideological purist." And the opposite of "ideological purist" is not "legal politician." In fact, the "ideological purist" may well be too much of a "legal politician."

Andrew Sullivan has a nice new blog design (marking his alliance with Time). I understand why people are attracted to the elegant dark background with white letters. It looks pretty from a distance, but reading it is oppressive enough that you don't notice it while you're reading it, but you experience great relief when it's gone. It's a bit like the way you feel when you get new-prescription glasses.

I like the little cartoon logo, too. It's not surprising that the at-home, casual style of the blogger is emphasized at the point when he joins up with the big magazine.

IN THE COMMENTS: We talk about Andrew Sullivan's appearance on "The Colbert Report" last night. I say:

I thought it was very interesting that Colbert dropped his right-wing-pundit persona when the subject of gayness was reached. It was clear that he either didn't want or didn't see how to be funny being obtuse about understanding gay people. He started to with the question "When did you choose to be gay?" But then he kind of just went silent and let Sullivan talk.

January 17, 2006

The show is an "integral part" of "American culture," we're told. By Seacrest, of course. Note: I like Ryan Seacrest.

They start off nicely with a lot of really good singers, then a few screwed up performances. They do an excellent job of creating a feeling that the country is full of really nice, optimistic young people. Some are deluded, but we love them and forgive. Some are terrific, and they always make us happy and want to reach out and embrace them. So, yeah, it's actually true that the show has become part of American culture. I know it's corny and edge-free. But still....

Lots of ultra-nastiness from Simon. He says they need a bigger stage after a fat woman sings (and does well). He tells a guy he should shave off his beard and become a female impersonator. But you know this sort of thing is trumped up. Simon must be mean. I just said the show is "edge-free," but now I remember that Simon is supposed to be the edge. He's pseudo-edge.... an integral part of the show.

Well, no one struck me that much tonight. There are an awful lot of kids who think singing very piercingly loud and emotively is the way to be good. It's bizarre to do that when you haven't had enough feedback yet. They just throw themselves out there, without any basic sense of where the notes are. And then there was that one girl who just threw herself into tanning, without any sense of proportion. She was a classic "American Idol" delusional.

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors.

That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses. Then-Attorney General John Ashcroft vowed to do that in 2001, saying that doctor-assisted suicide is not a ''legitimate medical purpose.''

Justice Anthony Kennedy, writing for the majority, said the federal government does, indeed, have the authority to go after drug dealers and pass rules for health and safety.

But Oregon's law covers only extremely sick people -- those with incurable diseases, whom at least two doctors agree have six months or less to live and are of sound mind.

Fascinating. I'll have more later. For now, I'll just observe that this provides a nice occasion for liberals to feel mellow about that erstwhile bugaboo federalism.

UPDATE: Kennedy writes:

The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable....

The importance of the issue of physician-assisted suicide, which has been the subject of an "earnest and profound debate" across the country, Glucksberg, 521 U.S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government's theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide....

The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States "'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'"....

Even though regulation of health and safety is "primarily, and historically, a matter of local concern," Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. [Citation to the medical marijuana case, Raich.] ....

The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.

Dissenting are Roberts, Scalia, and Thomas. It's quite interesting that the majority is made up of everyone who voted in favor of congressional power in the medicial marijuana case, plus O'Connor and minus Scalia. That means only O'Connor took the strong federalism position in both cases. And only Scalia sided with the government in both cases.

Let's look at Scalia's dissent:

The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality -- for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

The most interesting dissenter is Thomas, of course, because he voted against federal power in the medical marijuana case. He writes:

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States'" 'traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.'" Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court's reliance upon the constitutional principles that it rejected in Raich -- albeit under the guise of statutory interpretation -- is perplexing to say the least.

Thus, Raich was wrong, but now it's decided, and you ought to have to face up to the consequences of your own decision.

But there is some reason to see statutory interpretation and constitutional law as different when it comes to the division of power between the states and the federal government. You might want to interpret statutes narrowly to preserve room for the states to pursue their individual policies but still not want to say that Congress lacks the power to intrude with uniform law if it sees good enough reason to do so. Demanding that Congress pass more explicit statutes in order to blot out state experimentation in areas of traditional regulation is not inconsistent with the belief that Congress ultimately does have that power. This is a moderate approach to federalism that appreciates that uniform law may be necessary, but still values decentralized lawmaking. It enforces federalism values by requiring Congress to go through the exercise of consciously considering whether to deprive the states of the room to choose their own policy preferences.

Arnold Schwarzenegger rejected that argument, made by lawyers on behalf of the murderer Clarence Ray Allen, who was just executed. It almost seems that there was an argument that keeping him alive would be a way of inflicting more punishment on him. At least, one might say that execution has lost the meaning it is supposed to have for the condemned man. But none of that states a reason for clemency.

[H]e offered up what may be the best one-line definition of this country. The New World, he asserted, judged a man not by who he was, but by what he could do. And what Franklin could do was staggering. His legacy is not a political philosophy but a protean existence, act after act of bold curiosity, brash risk-taking, raw ingenuity. Once those constituted a definition of the American character. Today they would more likely be termed "hypomania," a fair diagnosis for any individual who manages single-handedly to found a library, fire company, police force, hospital, university, insurance company, sanitation department and militia.

But when Taylor saw Collins's embarrassed reaction, he realized she had been having an affair -- meeting her lover in the flat whilst Ziggy looked on, the UK's Press Association reported.

Ziggy even mimicked Collins's voice each time she answered her telephone, calling out "Hiya Gary," according to newspaper reports.

Call-center worker Collins, 25, admitted the four-month affair with a colleague called Gary to her boyfriend and left the flat she had shared with Taylor, 30, for a year.

Taylor said he had also been forced to part with Ziggy after the bird continued to call out Gary's name and refused to stop squawking the phrases in his ex-girlfriend's voice, media reports said.

"I wasn't sorry to see the back of Suzy after what she did, but it really broke my heart to let Ziggy go," he said.

"I love him to bits and I really miss having him around, but it was torture hearing him repeat that name over and over again.

"I still can't believe he's gone. I know I'll get over Suzy, but I don't think I'll ever get over Ziggy."

Suzy's better off without a guy who would treat Ziggy that way. I suppose it was torture, having the parrot raving about Gary in Suzy's voice, but really: get a sense of humor. It's quite hilarious, the parrot saying "I love you, Gary" in front of the cheating girlfriend. And come on, the girlfriend lives in the place with the talking bird for a year yet she still provides him with the material to expose her? I think she had to want to get back at Chris:

"I am surprised to hear he got rid of that bird.

"He spent more time talking to it than he did to me."

Sounds like she was planning to leave him anyway and devised an amusing plan to let him know -- and to take revenge on the bird he loved more than her. And now Chris has no girlfriend and no parrot. And he's got his name in the news as a warning to all future girlfriends: here's the kind of a guy who would punish an innocent bird.

Although the article reported that the information had been obtained from reports in The Daily Telegraph and other British newspapers, The Times could not verify the former couple's accounts because the information was given to the British press by a freelance journalist who charged for the account. The Times does not pay for information. The Times should have disclosed fully to readers why we relied on other news reports. Or, perhaps it would have been prudent, given that condition, for The Times to have resisted parroting the episode at all.

In the WaPo, Ruth Marcus expresses her frustration with the way John Roberts and Samuel Alito talked about the role of the judge at their confirmation hearings. They presented themselves as humble, neutral interpreters of legal texts. She appeals to Judge Richard Posner for more insight:

As much as a court "is supposed to be tethered to authoritative texts," Posner writes, the Supreme Court often finds itself facing issues to which "the constitutional text and history, and the pronouncements in past opinions, do not speak clearly." It is in that "broad open area where the conventional legal materials of decision run out, and the Justices, deprived of those crutches, have to make a discretionary call."

Such cases, as Posner notes, inevitably bring into play competing conceptions of social good, without solutions that can be derived with certainty: the desire to ensure public safety vs. the need to protect those accused of crimes; the rights of the fetus vs. a woman's autonomy; the importance of colorblindness vs. a recognition of the legacy of discrimination; religion as a positive force in public life vs. the risk of marginalizing the minority. On a more elevated but even more important plane, different judges bring to the bench different attitudes about presidential power, federalism and constitutional interpretation.

What has been so disappointing about the nominees' testimony is their unwillingness to engage in this discussion in an honest, meaningful way. What has been so maddening about the questioning is the senators' inability to penetrate their platitudes or robotic restatements of the law. Because thinking hard isn't enough....

Can we picture a new, improved Senator who could penetrate the facade? Much as the Senators exasperate me, I think not. The neutral-expositor-of-the-law pose is so effective and appealing that it is highly unlikely that a nominee -- conservative or liberal -- will relax into a more revealing position. Posner's insights are important, but they are mostly accounted for at the point when the President makes his selection. He must pick someone whose instincts and judgments deserve our trust. Beyond that, the Senators may find things out about the leanings of the nominee, but, unless the President has blundered, they are unlikely to uncover something serious enough to overcome the sense that a highly qualified nominee warrants confirmation.

January 16, 2006

Are you watching the Golden Globes? On this last day of winter break, this Martin Luther King Day holiday, I whiled away much of my time in can't-put-it-down mode watching the DVDs of Season 1 of "Project Runway," which recently came in the mail. I watched it effortlessly, in marathon form. Oh, how I loved it! I laughed. I cried. I loved Austin Scarlett from the first moment, and I loved a lot of other people over the course of the high-speed (for me) season. As Kara Saun emerged as a force, I cried at her greatness. But I won't do any spoilers here. If you didn't watch the show, order the DVD. Now, I can move comfortably back into Season 2, already in progress. But do I have the TV energy to sit through the crazy Globes? Well, yes, why not?

Best Supporting Actor: George Clooney, for "Syriana." He thanks Jack Abramoff. "Who would name their kid 'Jack' with the last word's 'off' at the end of you last name? No wonder that guy's screwed up."

Best Supporting Actress: Rachel Weisz for "Constant Gardener." Her dress isn't not as good as what Austin Scarlett could have made. Her speech is the usual boring thanks. No smutty political talk a la Clooney.

Drew Barrymore comes out in horrendous green with shockingly pendulous breasts to introduce the first of the best picture nominees "Good Night and Good Luck."

TV actress: Geena Davis wins for playing the President of the United States. She's chubby and wearing a dress that would have been devastated by the "Project Runway" judges. She's funny, taking people by in telling a story of a little girl who told her she wanted to be President then admitting it was a fake. And there's no add-on joke that lying is a way of being President-like.

TV actor: Hugh Laurie, for "House." Blabby! Thinks he's cute.

Clip from "The Producers" introduced by baby-talking hag Melanie Griffith. The film is an embarrassment.

"Empire Falls" wins for whatever the category is for that.

Best Actor, TV: Steve Carell, for "The Office," beating that "Earl" guy and Larry David. He acts out reading from a piece of paper, a speech written by his wife. A line from it: "To my parents, for not making me go to law school."

Best Actress, movie musical or comedy: Reese Witherspoon for "Walk the Line." "Okay, my husband just hit me so hard, I almost fell over."

Actress, TV comedy: Mary-Louise Parker for "Weeds." She giggles a lot in a weed-appropriate way. "I just want to make out with all of you."

Actor, TV movie: Jonathan Rhys Meyers for impersonating Elvis.

Actress, TV movie: S. Epatha Merkerson. "I'm 53 years old. This was my first lead in a film."

Screenplay: "Brokeback Mountain." Larry McMurtry thanks his lawyers and his Hermes 3000 typewriter. "It's kept me for 30 years out of the dry embrace of the computer."

TV musical/comedy: "Desperate Housewives."

John Williams wins for one of his drecky soundtracks. Then some crappy song from "Brokeback Mountain" wins.

Ooh! Gwyneth Paltrow comes out in a neat white dress with puff sleeves. A special award for Anthony Hopkins. We see him playing a number of roles, including Hitler (yelling) and Nixon (sobbing). And the usual fava-beans-and-a-nice-chianti stuff. [ADDED: Chris emails: Worst-ever misquoting of a famous movie line: "Ready when you are, Mr. DeMille" (Anthony Hopkins).]

Best director: Ang Lee for "Brokeback Mountain." "Wow, getting this award, for this movie, from The Man." (The Man is Clint Eastwood.) "And everyone in Taiwan, Hong Kong, and China: I wish you a Happy New Year."

Best actor, movie musical or comedy: Presented by John Travolta. Joaquin Phoenix for "Walk the Line." I don't like the way the actors in dramatic musical movies always beat the comic actors in this category. It's against the spirit of the categorization.

Best picture, musical or comedy: "Walk the Line." Again, unfair to comedies. A violation of the spirit of the categorization. "I know that John and June are up in Heaven with my mom and dad," says the producer, inanely. Why would Johnny Cash and June Carter Cash hang out with some producer's parents? That's just nutty.

Best TV drama: "Lost." "The show is an exercise in faith, and most of all we would like to thank you for having faith in us." Suddenly, the awardcast has gone all religious.

Best actress, drama: Felicity Huffman, who cries and salutes transgender persons for "becoming who they really are."

Best actor, drama: Phillip Seymour Hoffman for "Capote." "I was given the best part of my life."

Best picture, drama: Morgan Freeman announces the nominee. I hear his voice and look for the penguins. [ADDED: Sorry, it was Denzel Washington. I was in another room, listening, at this point.] "Brokeback Mountain" wins. Producers accept and are, as always boring. No info on what his parents are doing in the afterworld.

And the show ends precisely on time. Nothing surprising or weird this year, despite the conventional wisdom that people get drunk and let loose at the Globes. I wouldn't count the implied smuttiness of the Clooney and Quaid remarks. Just your basic handing out of awards to pretty much everyone you thought would get one.

The nomination of Samuel Alito has focused us on the importance of winning presidential elections. Many opponents of Alito say that a majority of Americans don't want the Supreme Court to become as conservative as he would make it. Many who don't oppose him will say that too, but we also accept that the election has consequences and think that the President gets to pick someone who shares his general philosophy (assuming the person is well-qualified).

In this context, it's quite interesting to remember that the issue of Supreme Court appointments was not emphasized in the 2004 election. A few weeks before the election, I wrote a post titled "What we're not talking about":

[W]hat is not being talked about that you would have thought you'd hear plenty about?

Supreme Court appointments! This was a huge issue in the 2000 election, when we were told the next President was sure to appoint two and maybe even three or four new Justices, and we--especially we women--were encouraged to feel quite alarmed about it. Here's speculation about particular appointments, in the October 4 Newsweek (including the ridiculous notion that President Kerry might appoint Hillary Clinton to the Supreme Court). The Sacramento Bee today asserts that "All Eyes" are "on Aging Justices," which, first of all, is not true (no one seems to be bothering); and second of all, is offensively ghoulish. (Why are we so solicitous of the needs of old voters, but openly take a deathwatch attitude about old Justices?) The Bee article is not based on statements by the candidates and notes that Kerry hasn't made the issue a "centerpiece" of his campaign. It quotes those who would like to see the issue on the front burner. Here's an AP article noting the absence of candidate attention to the issue.

I see there's a Daily Kos piece from Saturday, "Crank up The Supreme Court as an Issue in this Campaign!"

Is there any reason the Kerry campaign isn't making the Supreme Court a HUGE issue? ...

There's been a lot of talk recently about a possible decline in support amongst women for John Kerry. How about ratcheting up the Roe v. Wade/Supreme Court issue in the last few weeks?

As if the Kerry campaign might somehow have just forgotten about abortion and the standard way to make it a big issue. (Those Justices aren't getting any farther from the grave!)

Why don't the reporters delve into the question why the Kerry campaign decided to drop the issue? I could speculate, here in my dining room in Madison, Wisconsin: Some research showed the issue hurt Kerry. But why don't the professional journalists reveal the actual strategies of the campaigns? The AP reporter -- prompted by Kos? -- just dusts the cobwebs off the old deathwatch warnings heard in the 2000 campaign and calls up the head of a "liberal-leaning" group and a "conservative-leaning" group for some stock verbiage.

Bush won (and Kerry lost) on other issues, chiefly national security. A lot of people who voted for Bush -- myself included -- would have been happier with a liberal hawk. Our vote for Bush doesn't represent a preference for more judges like Scalia and Thomas (as Bush promised us during the campaign).

Could Kerry have torn away enough Bush votes if he'd used the Supreme Court issue? I rather doubt it. I myself was fully aware of the consequences with respect to the Supreme Court, whether Kerry talked about it or not. But the national security issues were more important to me. The Democrats would like to have a shot at some Supreme Court appointments, and we might very much like to see those appointments, but unless they produce a candidate who can satisfy national security-minded liberals, it's not going to happen.

The Dutch government will announce over the next few weeks whether it will make it a crime to wear traditional Islamic dress which covers the face apart from the eyes.

The Dutch parliament has already voted in favour of a proposal to ban the burqa outside the home, and some in the government have thrown their weight behind it....

"We don't want women to be ashamed to show who they are. Even if you have decided yourself to do that, you should not do it in Holland, because we want you to be integrated, assimilated into Dutch society. If people cannot see who you are, or see one inch of your body or your face, I believe this is not the way to integrate into our society."...

Mr Wilders' name was included on a list of "infidels, who deserved to be slaughtered", which was found pinned to the body of filmmaker Theo Van Gogh.

Van Gogh was murdered two years ago for making the film about women and Islam called "Submission". It starts with a shot of a woman's face covered by a burqa. Slowly the camera shows that, from the neck downwards, she's naked but for a thin veil.

Mr Wilders has explicitly linked his wish for a burqa ban with terrorism.

"We have problems with a growing minority of Muslims who tend to have sympathy with the Islamo-fascistic concept of radical Islam," says Mr Wilders.

"That's also a reason why everybody should be identifiable when they walk on the street or go to a pub or go into a restaurant or whatsoever."

Asked about the first lady's comments Sunday, Rice laughed and good naturedly answered the recurring question about her prospects for president in 2008. No dice, she said for the umpteenth time.

"Obviously, it's flattering when people say things like that. The first lady is not only a terrific person, she's my friend. And I was honored that she said that, of course. She's a wonderful person," Rice said.

"But I've spoken to this. I know what I'm good at, I know what I want to do and that's not it."

First, in her role as Secretary of State, she can't be openly acknowledging that she wants to run for President. Second, "I know what I want to do and that's not it" is a statement in the present tense, and what she "wants to do" must be what she is currently doing. What she wants to be doing in the future and what she will in the future want to do are two additional issues, not addressed by the statement. Finally, we don't know that she will only do the things she "wants to do." One could very well say "I don't want to be President," and still be entirely willing to serve if others prevail upon you.

"I know what I want to do and that's not it" is full of possibilities!

As to "I know what I'm good at," I think there should be a period after that. The press reports a run-on sentence, and you know our Condi would not have written it out with a punctuation error like that. So she knows what she's good at. But she doesn't state what it is. Even if we assume "that's not it" relates to "I know what I'm good at," that's modesty, and, again, that's the present tense. She could become better at the skills needed to run for President, and she could run for President even without the highest level of skill. Everyone else who runs for President seems to be rather bad about it. Why is that a special limitation for her?

After counting the minutes to get to the end of the Alito hearings last week, you might want to start off this week by counting words in the transcripts. Dana Milbank has this:

By the numbers, Judge Alito's language was painfully cautious. He mentioned "stare decisis" -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times).

"Humphrey's Executor" (whoever he is)... A thousand conlaw profs wring our hands. "Humphrey's Executor" (whoever he is)! As if that's just some obscurity Alito threw out to bamboozle us.

IN THE COMMENTS: Stiles defends Milbank:

For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community.

John Althouse Cohen responds to Stiles:

Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson.

I add:

They were too busy observing that it was all gobbledygook and that he wasn't saying anything to listen carefully enough to have a shot at understanding it. But yeah, it was quite comprehensible, even though... Senator Kennedy tried his best to fuzz it up because it had to do with the "unitary executive" issue that he was trying to alarm people about.

I include a long passage from the Thursday transcript that shows how Alito explained the case and Kennedy tried to make Alito look extreme.

UPDATE: This post is getting enough attention -- here and here and elsewhere -- that I want to add that I think Milbank is surely capable of understanding Humphrey's Executor and writing about it if he felt like it, that there is a place for lightweight pieces like this one, that "whoever he is" is an amusing locution, and that the main observation in the article -- that Alito talked about law and the Senators talked about politics -- is sound and worth making. I do bemoan the fact that the reporters covering the hearing stand at some distance from the legal issues under discussion and mostly only observe the dynamic among the participants. In doing this, they can miss the content of the discussion. If I'm a little harsh on Milbank on this score, it's because I heard him say this on "Reliable Sources" on Sunday:

I had a discussion through the week with my editors. They said, "We want you to write about Alito. He's the nominee." I said, "That's great, but the senators are doing all the talking."

So, I mean, he wasn't the story in the sense that he didn't say anything particularly interesting. You know, the fact is these hearings are entirely theatrical. There is no substance conveyed...

[I]f the picture [on camera at the hearing] zoomed out a bit there and you saw what was going on at the table, first of all, you would see that three- quarters of the tables were empty after about two hours of this....

They left. They were reading a newspaper. There's computer solitaire going on.

Fortunately, we had some wi-fi there in the chamber. You would have seen me weeping. Forget about Mrs. Alito. It was dreadful....

[From the moderator, Howard KURTZ: But this is dereliction of duty. There was legal substance being discussed.]

There was legal substance, but, as a matter of fact, I'm sure you could actually draw up an equation, every time you mention "due process" on the air you lose 5,000 viewers. Every time you mention "unitary theory," the executive, 20,000 viewers click off. And the same thing with the newspapers. It's not something that people can appreciate.

So he's ignoring the substance and dumbing things down because that's what the people want. Sorry, but this bugs me a little. He feels free to opine that nothing was said, wielding his authority as the Washington Post reporter on the scene, but I'm not convinced he ever engaged enough to know. And now there's this meme: Alito said nothing. I don't think that's fair.

That's a quote from a scientist in an article about how ants are teachers. That reminds me: the Spring semester starts tomorrow. Today will be a day of furious -- but not antlike -- activity. I've got some exams to finish grading and two syllabi to polish off. But there's still time to wonder if those ants are really teachers:

[Nigel R. Franks, professor of animal behavior and ecology] said careful analysis, and a great many hours of videotape, proved that the ants were teaching one another. For example, if the leaders were to race to the food on their own, he said, they would reach it four times as fast than if they had a follower tagging along. Even grabbing a follower by the mouth and physically lugging it to the food, as the ants are sometimes prone to do, was three times as fast as the teaching exercise. But the ants persisted with the tutorial, Franks said, presumably because followers that were carried were trucked with their heads turned upside down facing backward -- hardly the best vantage point from which to master a new route.

The ants appeared to follow pedagogical techniques that good human teachers have used for centuries. The lesson was highly interactive and proceeded at a pace set by the followers. If the gap between leader and follower increased too much, the leader slowed down. If it was too close, the leader accelerated....

No sooner was the paper published, of course, than another educator ... pooh-poohed it. Marc D. Hauser, a psychologist and biologist and one of the scientists who came up with the definition of teaching, said it was unclear whether the ants had learned a new skill or merely acquired new information. Mere communication of information is commonplace in the animal world, Hauser noted.

We lawprofs are always going for the skills, not the mere passing on of information, one hopes.

"The media attention has all gone to the political wing," said James R. Kelly, a professor of sociology at Fordham University in New York who has written about the history of abortion in America. "But the first national organizations in the movement were not political; they were service groups that provided direct aid to women so they would not abort. These are low-key and hidden, but they were always there and had more volunteers than the political side."

The methods are rather deceptive:

... Woman's Choice is designed to look and feel like a medical center, not a religion-based organization with an agenda. Becky Edmondson, the executive director, said the center chose the look and name to reach women who were bombarded with pressures to abort and might think they had no other choice.

If callers ask how much the center charges to perform an abortion, Lisa Arnold, a counselor and leader of the postabortion group, said: "I say, 'It changes, but why don't you come in for an ultrasound and we'll talk about it.' You don't want to deceive them, but you want a chance to talk to them." Once women come to the center, staff members - who oppose abortion even in cases involving rape and incest - encourage them to make further appointments, and refer them to doctors who share the center's views on abortion.

I really can't understand why the New York Times would write a substantial article about A.J. Weberman, a man who has rooted through Bob Dylan's garbage for years. I can see that he's written a book, but this isn't a book review, and there's no indication that the book is anything other than a deluded obsessive's compilation of invented interpretations of song lyrics (published by the Yippie Museum Press).

January 15, 2006

...Japanese culture and sex roles play a strong part in the hikikomori phenomenon. "Men start to feel the pressure in junior high school, and their success is largely defined in a couple of years," said James Roberson, a cultural anthropologist at Tokyo Jogakkan College and an editor of the book "Men and Masculinities in Contemporary Japan." "Hikikomori is a resistance to that pressure. Some of them are saying: 'To hell with it. I don't like it and I don't do well."' Also, this is a society where kids can drop out. In Japan, children commonly live with their parents into their 20's, and despite the economic downturn, plenty of parents can afford to support their children indefinitely - and do. As one hikikomori expert put it, "Japanese parents tell their children to fly while holding firmly to their ankles."...

Many hikikomori also describe miserable school years when they didn't, or couldn't, conform to the norm. They were bullied for being too fat or too shy or even for being better than everyone else at sports or music. As the Japanese saying goes, "The nail that sticks out gets hammered in."...

In other societies the response from many youths would be different. If they didn't fit into the mainstream, they might join a gang or become a Goth or be part of some other subculture. But in Japan, where uniformity is still prized and reputations and outward appearances are paramount, rebellion comes in muted forms, like hikikomori. Any urge a hikikomori might have to venture into the world to have a romantic relationship or sex, for instance, is overridden by his self-loathing and the need to shut his door so that his failures, real or perceived, will be cloaked from the world. "Japanese young people are considered the safest in the world because the crime rate is so low," Saito said. "But I think it's related to the emotional state of people. In every country, young people have adjustment disorders. In Western culture, people are homeless or drug addicts. In Japan, it's apathy problems like hikikomori."

This podcast marks the second anniversary of the blog by going back to the first few posts ever... and digressing. (You can stream it through your computer -- no iPod needed -- here. Or subscribe here or at iTunes.)

Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.

In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.

That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.

Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.

This is a tremendously important lesson. I have heard so many liberals say that they only want to talk about ideology. They want to rely on the portrayal of judging as ideological, but then deny the President his choice of ideology. This doesn't work, and it shouldn't work. If we accept the foundation of the argument -- that judging is ideological -- then there is no trump to the President's appointment power when his party controls the Senate. Your unhappiness with the President's choice of ideology has one answer: Win elections. By declining to frame arguments in terms of legal analysis, the Democrats empowered the nominee to win by simply explaining a lot of legal arguments.

Several Democrats expressed frustration over what they saw as the Republicans outmaneuvering them by drawing attention to an episode Wednesday when Judge Alito's wife, Martha-Ann, began crying as her husband was being questioned. That evening, senior Democratic senate aides convened at the Dirksen Senate Office Building, stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation - as opposed to, for example, images of Senator Edward M. Kennedy, Democrat of Massachusetts, pressing Judge Alito about his membership in an alumni club that resisted affirmative action efforts.

"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats' problems. "It got front-page attention. It was on every local news show."

Beyond that, Democrats said Judge Alito had turned out to be a more skillful witness than they had expected. They said Democrats on the Judiciary Committee had been outflanked in their efforts to pin down Judge Alito on any issues, and that some of the questioners - notably Senator Joseph R. Biden Jr., Democrat of Delaware - devoted more time to talking than to pressing the nominee for answers.

We'll never hear the end of the wife's crying. It's becoming mythic. If only that hadn't happened, we could have gotten some footing out of Kennedy badgering him about the alumni club. But the crying resonated because we experienced the questions as unfair and because we too were exasperated by what we could see was political posturing.

We hear a lot about the crying, but there is at least as much talk about how long the Senators spoke. They seemed to be making political speeches, which really was consistent with their own bad decision to portray judging as a political enterprise. If we'd believed that portrayal, their expressions of political preferences would have seemed quite relevant. But people aren't buying that portrayal, and they shouldn't. What judges do is different from what Senators do, and they need arguments that make sense as a criticism of judging.

"[W]hat has happened is that this has turned into a political campaign," [Senator Kennedy] said. "The whole process has become so politicized that I think the American people walk away more confused about the way these people stand."

How are people confused? If it's political, the winners of the elections should prevail. If you want to say it's not political, then why did you portray it as political, throughout the hearings and as part of a strategy devised years ago at your retreat?